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CHAR 

OF THE 

HON. CHIEF JUSTICE DURFEE, 

DELIVERED TO THE GRAND JURY AT THE MARCH TERM OF 

THE SUPREME JUDICIAL COURT, AT BRISTOL, 

RHODE.ISLAND, A. D. 1842. 

PUBLISHED AGREEABLY TO THE FOLLOWING REQ,UEST: 

Grand Jury Roorn^ March 15, 1S42. 
The Grand Jurors respectfully tender to the Hon. Supreme 
Judicial Court their thanks for the learned and approfiriate 
charge delivered to the Grand Jury, this morning, by Mr. Chief 
Justice Durfee. Relating, as it does, to a subject upon which 
there is much diversity of opinion, but which all admit to be of 
momentous interest, the jurors think its publication would be 
useful at the present tmie, and do request a copy for the press. 
Henry D'Wolf, Thomas Wilson, 

Rowland Smith, John J. Allin, 

Samuel Sparks, Jonathan Martin, 2d,, 

William H. West, Ebenezer Grant, 

S. T. Church, Ira B. Iient. 

Robert S. Watson, 



Gentlemen of the Grand Jury : 

It is made our duty, by statute, to instruct you in the law 
relating to crimes and offences cognizable by this court, by 
giving you publicly in charge our opinion thereon. We are 
not at liberty to forego this duty, from any feelings of delicacy 
towards others, or for any considerations of a personal nature. 
A court is but the organ of the law^^ and when it speaks, it 
should announce what the law is, "without fear, favor, affec- 
tion, or hope of reward." I use the language of the oath 
which you have just taken, gentlemen ; for that oath does as 
truly express our obligations as a court, as it does yours as a 
jury. 

The first duty which every person residing within the ju- 
risdiction of this State owes to it, is that of allegiance. It be- 
gins with life — with infancy at the mother's breast, and if he 
continue an inhabitant or citizen of the State, it terminates 
only with the last breath which delivers the spirit over to its 



% 

final account. Allegiance is a duty due on an implied con- 
tract — nfteii, however, sanctioned by an oath, but none the 
less sacred, in the absence of the oath — that so long as anyone 
receives protection from the State, so long will he demean 
himself faithfully and support the State. All persons, there- 
fore, abiding within this State, and deriving protection from its 
laws, owe this allegiance to it, and all persons passing through 
it, or visiting, or making temporary stay therein, owe, for tlie 
time, allegiance to this State. One of the highest crimes of 
which a human being can be gm'lty, is treason ; and treason 
necessarily involves a breach of allegiance. 

From the following resolutions, and the matters to which 
they relate, there seems to be a peculiar necessity for my call- 
ing your attention to this subject, at this time ; for, as a court, 
it is not only our duty to try offences when committed, but to 
prevent them, if it can be done, by making the law known. 

Those resolutions are in these words : 

" State of Rhode-Island and Providence Plantations. 
In General Assembly, January Session, A. D. 1S43. 

Whereas a portion of the people of this State, without the 
forms of law, have undertaken to form and establish a consti- 
tution of government for the people, of this State, and have 
declared such Constitution to be the supreme law, and have 
communicated such Constitution unto this General Assembly ; 
and whereas many of the good people of this State? are in dan- 
ger of being misled by these informal proceedings, therefore. 

It is hereby resolved by this General Asscinbly, That all 
acts done by the persons aforesaid, for the purpose of imposing 
upon this State a Constitution, are an assumption of the powers 
of government, in violation of the rights of the existing gov- 
ernment, and of the rights of the people at large. 

Resolved, That the Convention called and organized, in 
pursuance of an act of this General Assembly, for the purpose 
of forming a Constitution .to be submitted to the people of this 
State, is the only body which we can recognize as authorized 
to form such a Constitution ; and to this Constitution the whole 
people have a right to look, and we are assured they will not 
look in vani, for such a, form of government as will promote 
their peace, security and happiness. 

Resolved, That this General Assembly will maintain its 
own proper authority, and protect and defend the legal and 
constitutional rights of the people. 

True copy: — Witness, 

HENRY BOWEN.vS^eeVy." 



Gentlemen, whatever I shall say to you touching these res- 
olutions, and the proceedings to which they refer, shall be said 
with tiie lull and entire concurrence of each member of this 
court. Audit is peculiarly appropriate, in a case like this, that 
it should be known what the opinion of this court is, so that 
no man may become implicated in any offence against the 
State, without a full knowledge of the opinion of this court, as 
an independent branch of the government, in relation to the 
nature of the offence and the law which it violates. 

1 therefore say to you, that, in the opinion of thiscourt,"such 
a movement as that described in these resolutions, is a move- 
ment which can find no justification in law : that if it be a 
movement against no law in particular, it is, nevertheless, a 
movement against all law; that it is hot a mere movement for 
a change of rulers, or for a legal reform in government, but a 
movement which, if carried to its consequences, will terminate 
the existence of the State itself as one of the States of this 
Union. Lwill now give our reasons for this opinion. 

But, gi'utlemen, in addressing you upon this subject, I know 
not but that I am addressing those who have participated in 
this movement. If this be the case, 1 beg you and all others 
with whom you may have acted, to distinctly understand me. 
Whatever language I may use to characterize the movement, 
it shall be but the language of the law ; it shall mean no im- 
peachment of your or their motives. I will concede to you 
and to them, if you choose, motives as pure and patriotic, legal 
attainments and talents as high, as those of the purest and great- 
est minds that this State ever produced ; and still I say, with 
all proper deference to you and them, that you have mistaken 
your duties and misunderstood your rights. Deem it not strange 
that calm lookers on can see where the error lies, better than 
those who are engaged in the heat of the movement. When 
great masses move, they move under the influence of excited 
feelings. When the object is to attain some great political 
good, real or supposed, the excitement takes for its law of ac- 
tion, some etherial abstraction, some general theoretic prin- 
ciple, true, perhaps, in its application to certain theoretic con- 
ditions of man, but utterly false in its application to man as he 
is; and endeavors, without regard to present social organiza- 
tions, to carry that principle to its utmost consequence's. Gen- 
tlemen, strong heads and patriotic hearts doubtless gave the 
first impetus to the French Revolution ; but does not the pro- 
gress and issue of that bloody drama tell us that those abstrac- 
tions, (in which they so freely dealt,) whatever might be theii 
theoretic truth, became false and fiendish in their application 



Do we not know that the very masses which were engaged 
in carrying them out, rejoiced when the iron rule of military 
despotism came, to deUver them from themselves, and from 
the incarnate demons which the movement had conjured up? 

Gentlemen, when all men are angels and of the same order, 
these abstractions may be true in all their consequences, but 
never in their application to man as he is. 

With this explanation, I proceed to show the illegality of this 
movement, and the ruin that it portends. I repeat, that, however 
patriotic may be the intent, the legal effect of it is, the destruc- 
tion of the present State, and the construction of a new State 
out of its ruins. 

Gentlemen, what is a State ? I ask not for a poetical defini- 
tion, but I ask for a definition which befits a court of law, which 
may befit the courts of the Union in which we must be ultimately 
judged. Strange as it may seem, amid all the controversy which 
this movement has excited, I have not known this question to be 
asked, or a definition to be given. Such have been the jarring and 
confusion of the social elements, that the best minds seem to have 
uttered their thoughts only in fragments. What, I repeat, is a 
State ? Think ye it is the land and water within certain geo- 
graphical lines ? The child may tell you so when he points 
at the map; but that is not the State, but only the territory 
over which the State has jurisdiction. Think ye it is a mere 
aggregate of neighborhoods within those limits ? No, gen- 
tlemen, there is something wanting to give them distmctive 
unity. A merCj proximity of habitations never made a State 
any more than congregated caravans of Arabs when by night 
they pitch their tents together in the bosom of the desert. 
Think ye it is the aggregate of inhabitants within such limits? 
Never. It would be preposterous to call a mere collection of 
individuals within certain limits, a state. Regarded as a mere 
aggregate, they are still without unity, and have nothing 
whereby to bind them together, and enable them to act as an 
organized whole. No treaty can be made with them ; no law 
can be enacted by them. Think ye that it is the mere rulers 
or those who have the legislative and executive power in their 
hands? This, indeed, comes something nearer to our idea of 
a State ; and when we look upon governments abroad, we may 
look no farther; but surely this does not make a State here at 
home, under the Constitution of the United States. Here we 
must not only find a government, but a people so bound togeth- 
er, colligated and organized by law, as to ap})oint rulers, and to 
reduce the innumerable wills of the multitude to a legal unit. 
I think I give you a true description of a State, when I say 



that a State is a legally organized people, subsisting as snch 
from generation to generation, without end. giving, through the 
forms of \a\v, the wills of tiie many, to become one sovereign 
will. It is a body politic, quahiied to subist by perpetual suc- 
cession and accession. It is a self subsistent cor[)oration, rest- 
ing upon its own centre, and it is, under the constitution of 
the United States, bound, to a certain extent, in its entirety 
and in all its constituent individual elements, to that common 
central body politic, which is the corporate peoj)Je of the Union 
or body politic of States, which ever it may be. There is, 
and from the nature of things, there can be no sovereign people 
without law ; witiiout that unity which the law gives them, 
whereby they are enabled to act as one ; and consequently 
there can be no sovereign will that is not expressed through the 
forms of their corporate existence. 

Now can there be a doubt that this is a true definition or 
description of a State, and that it applies to this State as one of 
the States of the Union? Lest there should be a lingering 
doubt, in some reluctant mind; I will verify this definition 
from the history of the State itself. 

The first charter of this State was granted in 1643. It in- 
corporated Providence, Portsmouth and Newport, under the 
name of the incorporation of Providence Plantations, in Narra- 
gansett Bay in New-England. Warwick \vas subsequently 
admitted. It w^as then that the inhabitants of this State first 
became a corporate people, but dependant on the mother coun- 
try. In 1660 this corporate people, by their agents, petitioned 
their sovereign for a new charter. On this petition, the charter 
in our statute books was granted, and, by the sam.e corporate 
people, in November, 1663, accepted as their charter or form of 
government. This charter declared that certain persons 
named therein, and such as then were, or should thereafter be 
made free of the company, a body corporate and politic, in 
fact and name, by the name of the Governor and com]iany of 
Rhode-Island and Providence Plantations in New-England, in 
America, and by the same name that they and their successors 
should have perpetual succession. Now, here was a corpora- 
tion, and the freemen constituting it, contiinied their corpo- 
rate existence, subsisting by succession, still dependent upon 
the parent government, exercising the powers in the charter 
granted, holding property of all sorts as a corporate people down 
to the Revolution. It was then, that those aggressions and 
claims of the king of Great Britain, which are set forth in the 
declaration of independence, and which were enforced or at- 
tempted to be enforced by the bayonet, thew this corporate peo- 



6 

pie upon the natural rights of self preservation. They resisted 
as a corporate people. It was in the prosecution of this justifia- 
ble defence, tiiat this corporate peo|)le found it necessary to cut 
the bonds which bound it to the mothei country. It did so. It 
was its own act, performed by its delegation in Congress, by 
its legislative body, and by the corporate people itself in every 
legal form in which it could act. It was this act and this 
alone, that made us a self-subsistent corporation, body politic, 
or State. It was this people, acting in its corporate capacity, 
or by its members, as members, through prescribed forms, that 
subsequently adopted the constitution of the United States, 
whereby this State became a member of the Union and its cit- 
izens, citizens of the United States. 

Does not the history of this State, Gentlemen, verify the de- 
finition which I have giveji ? Is a State any thing but a self 
subsistcnt body politic and corporate, designed to continue its 
existence by succession and accession, through all time? If 
it be any thing else, I neither know nor can conceive what it 
is. But if it be this, whatever there is of sovereignty must be 
found in the body politic and corporate, and no where else. 

But it has been lately said, by some whose opinions are en- 
titled to great respect, that on the separation from the parent 
government, a subsequent assent of the natural people was ne- 
cessary to continue the sovereign power in tlie corporate people, 
and that all right in the latter to govern, ceased and passed to the 
aggregate, unorganized mass of individuals. — Gentlemen, this 
cannot be so. The act of seperation, was the act of the cor- 
porate people, and all that was acquired by that act was acquired 
by the corporate, people and could be acquired by none but a 
corporate people. None but a corporate people has the capacity 
to receive and excercise sovereignty. The natural people has 
not the capacity to inherit, or succeed to sovereignty, though 
they may create it, by compact, all being parties, or by force, 
where there is no superior powers to impose restraint. A sov- 
ereign will is a unit, is a mere legal entity; it has no where in any 
civilized country any existence, independent of law. In the 
constitutional monarchies of Euroj.e, it has a mere legal exist- 
ence ; hence the legal maxim in England, that the sovereign 
never dies, and can do no wrong. The' moment that the sove- 
reign will ceases to be a legal will, and becomes a mere per- 
sonal will, you have nothing but a master and a body of slaves; 
you have no State at all, but only the semblance of one. 

The soverign will is a unit. The moment you divide it, 
you destroy it, and could such a unit pass to thousands of indi- 
viduals, isolated, independent, and bound together by no com- 



moil law as the natural state supposes, and still continue to ex- 
ist, as a unit, as a one, sovereign will ? Never, Gentlemen ; to 
pass it to the unorganized mass is to destroy it. i\nd how 
fallacious the idea, that the sages of seventy-six annihilated, re- 
duced to nothirjgness, the sovereignty of every State of this 
Union, in and by the very act which declared them sovereign 
and indepetident ! What became of the confederation? 
What became of the congress that made the Declaration. 

Truly, Gentlemen, some strange infatuation has seized upon 
the age, if we can believe, that, when the Congress of seventy- 
six declared these colonies, in the words of the Declaration, free 
and independent States, and that they had full power to levy 
war, conclude peace, contract alliances,- establish commerce, 
and to do all other things which independent States might of 
right do, that, at that very moment, every one of these States 
ceased to exist and crumbled into their natural elements. No, 
Gentlemen, our fathers uiiderstood themselves better than their 
children appear to understand them. Well may we iumible 
ourselves in the presence of their memory, when we find such 
strange hallucinations seizing upon the wisest and best of us. 
They have made large demands upon the admiration of their 
children ; let us take care we do not make demands, equally 
large, upon the pity of ours. Gentlemen, the definition is cor- 
rect, it is true to history, and it is true to the D(!claration of In- 
dependence, and it is true to the Constitution of the United 
States, v\^hich, according to its intent, this State as a corporate 
people, adopted by its convention. 

Gentlemen, let us not deceive ourselves by the various forms 
which this sovereignty puts on, to carry its will into effect. 
The government in all is departments, legislative, executive, 
and judicial, is but the exterior form which this sovereignty 
puts on, in order to preserve itself and to exercise jurisdiction 
over its peculiar territory, and all persons and things within it. 
It is ill this way that it extends protection to the whole people, 
and to every individual man, woman and child within its ju- 
risdiction, and makes them all one with the corporate peojile, 
except in the mere exercise of the right of voting. I have re- 
cently heard the phrases " the legal people," "the physical peo- 
ple," repeated by those whose o{)inions are entitled to respect, 
as if there was a distinction between them. Gentlemen, we 
are all the legal people, we are all the physical people. Every 
man, woman and child, not of foreign birth, domiciled within 
this State, is a citizei of this State, and lor that reason also a 
citizen of the United States. Every man, woman and child has 
the protection and benefit of all its laws, without distinction, 



9 

and for that reason, every one owes it allegiance and fidelity. 
No one within this jurisdiction can lawfully renounce this al- 
legiance and transfer it to another sovereignty, whether created 
within this State's jurisdiction or elsewhere. For this reason, 
each one and all are the legal people of this State, and are so 
regarded both by the laws of this State and the laws of the 
United States. We cannot recognize the distinction as having 
any just foundation in fact, or law. The error lies in the misap- 
plication of language. It is apparent that what they mean, 
who use the phrase "legal people," is the corporate people. 
By thus Hmiting a large and comprehensive phrase, aconfusion 
of ideas is produced and nothing is distinctly seen. The language 
seems to imply, that all who are not the legal people in this 
limited sense, are the illegal people, or people A/ithout law and 
in the natural state, and entitled therefore to rely on their 
physical force; and this idea seems to be strengthened and con- 
firmed by denomiiiaiiiig them the physical j)eople. We may 
all have misapplied these phrases. I myself may have misap- 
plied them, for I make no pretensions to being better or wiser 
than others. But if we have misapplied them, let us misapply 
them no longer; let us recollect that the legal people and the 
physical people, are the same great whole. 

But, Gentlemen, if it be true, that the corporate people be 
the sovereign people, and the forms of government but the in- 
struments of its will, what follows? Why, the moment that 
the corporate people cease to exist as such, every thing is re- 
solv^ed into its natural elements. This corporate people, whilst 
it exists, may, of its own will and through the forms of law, 
which it prescribes by its legislature, put on as many difterent 
forms of government, not conflicting with the Constitution of the 
Union, as it chooses. Its power, for that purpose, is ample, 
unquestionable. It may change its form as thoroughly and 
as often as the Tabled Proteus ; it may extend the right of suf- 
frage to every man, woman and child, and still remain the 
same legal entity, the same State. But the moment the corpo- 
rate people of Rhode Island cease to exist as such, whether by 
force, fraud or voluntary death, corporate Rhode-Island herself 
ceases to exist, the State is gone. Yes, one of the good old thir- 
tetMi is gone forever. You may close the grave upon her, you 
may write '■'hie jaceV upon her tomb, she lives only in history. 

It may be asked whether the natural people have not their 
natural lights, and whether one of these is not the right of es- 
tablishing a government of their own. I answer, that if we 
grant you, that the people have a right to violate their alle- 
giance, resolve themselves into the supposed natural condition 



of man, and to establish a new State and government, and, if 
we ever admit that it has aheady in this particular instance 
been clone, it does not at all relieve ns, under the Constitution 
of the United States, from the appalling fact that the old State 
has ceased to exist, and that the new State is not a member of 
this Union. We, as the natural people, have accomplishcid a 
revolution in which we have originated a new sovereignty, 
which utterly disclaims all connexion with that corporate 
Rhode Island which uttered the declaration of independence and 
adopted the Constitution ; and how can we claim to take her 
place ? how can we, as citizens of such a State, be citizens of 
the United States ? 

I have heard much, of late, about the right of revolution, and 
there is no doubt but that in those cases where a people, by the 
oppression and violence of their rulers, are thrown upon the nat- 
ural right of self preservation, this right exists, may be exer- 
cised, and a revolution be justified ; but however justifiable it 
may be, we should always recollect that if it be revolution, it 
is revolution, and nothing but revolution. There is no possi- 
bility of , making it half revolution and half not. If you resort 
to revolution you must adopt it, with all its consequences, be 
they never so calamitous. These calculations ai-e to be made 
at the commencement of it, and weighed against the evils 
which it is proposed to remedy. 

Thus, gentlemen, if every thing be conceded that we can 
ask for, if it be conceded that we have quietly put down the 
present corporate Rhode Island, and that we have succeeded 
in establishing this earth-born prodigy in her place, what have 
we done but broken our allegiance to our legitimate State, 
broken our allegiance to the United States, and accomplished 
our complete outlawry from the Union ! 

But perhaps we may hope that the general government will, 
without enquiry whether we be or be not the legitimate State, 
recognize the government in fact, (in legal phrase de facto,) as 
the State. I am apprehensive that in this hope we shall be 
disappointed, such a recognition would present a question of 
constitutional law aflecting every State in the union. This 
could not be avoided: but if it could, it would still present a 
question of policy equally certain to be decided against us. 
True it is that the government of the United States does re- 
cognise the government de facto of a foreign country as the 
legitimate government or State. And it does so from policy.* 
The government of the union, having no fundamental princi- 
ple in common with the monarchies of Europe, and in its anxi- 
2 



10 

ety to avoid an embroilment in their concerns, recognises those 
as the government of any country who exercise the powers of 
government, without questioning the legitimacy of their claims. 
But how is it with the monarchies of Europe among them- 
selves ! what is necessarily their policy ? Why, whenever a 
revolution is effected in any one of them upon principles which 
endanger their ideas of legitimacy or the permanence of their 
institutions, millions of swords at once leap from their scabbards, 
cities are wrapped in flames, fields are deluged with blood and 
heaped with slaughtered thousands. Think you that it was 
out of compassion to an exiled Bourbon, that Europe consumed 
one whole generation in blood and carnage ? No, Gentlemen, 
the struggle commenced, with sustaining their ideas of legiti- 
macy, in which every monarchy of Europe was interested, and 
terminated in their triumph. 

And how much more deeply interested will every State in 
this union be, all subject as we are to the same common Con- 
stitution and government, in a question of State legitimacy? 
For what is the principle to be established by the recognition 
of the new government as the State ? It presents itself in these 
facts. A portion of the people of this State, claimed a further 
extension of sufltYage, and an equalization of representation for 
the benefit of several towns. This, the legislature did not 
grant at their request, but called a convention with a view of 
establishing a Constitution which might meet every reasonable 
demand. This, I believe to be about the extent of our griev- 
ance. And now, before that convention had accomplished 
their task, we, backed by the physical force of numbers, take 
the powers of government into our own hands, frame a 
Constitution, declare it to be the supreme law of the land, and 
overturn, not merely the government of the State, but the State 
itself. Now, as a mere matter of policy, could the delegations 
of the several States in congress establish the principle, that 
because of such a grievance, mere numbers are above law and 
have a right to overturn the State of which they are citizens ? 
Let us try to call this a grievance, and then how many thou- 
sand grievances are there of greater magnitude in every State, 
and if they are to be in this way redressed, the stability of our 
institutions is at an end. Have we no questions touching domes- 
tic servitude ? None touching the social relations ? None touch- 
ing the most active and powerful of all principles, conscience 
and religious faith? May not protestantism, in a moment of 
infatuation and alarm, in this manner establish itself as the 
religion of the State ? May not Romanism then rally, put 
down protestantism, and establishing itself in turn, nail the cross 



11 

to every steeple, place a priest at every altar, and a teacher in 
every school, and compel us to support all by taxes ? May 
not the unequal distribution of property in some States be found 
a grievance ? May not banks in others become obnoxious ? 
May not certain forms of taxation become odious' May not 
the debts of the State bear heavily ? Let this principle of rev- 
olution, by an unauthorized and irresponsible movement of 
masses, become an element of the constitution of the Union, 
and any State may be overthrown, upon any pretext or petty 
grievance, real or supposed. And can any one believe that 
from policy the government of the Union would recognise such 
a principle ? Never — gentlemen — never — until that govern- 
ment, desirous of bringing about a consolidation of these States, 
chooses to put every element of disorganization into operation 
upon them. 

But if the new government cannot be recognised from pol- 
icy, the next question is, can it be recognized on legal and 
constitutional principles? What says the Constitution ? " New 
States may be' admitted by Congress into this Union, but no 
new State shall be formed or erected within the jurisdiction 
of any other State, without the consent of the Legislatures of 
the States concerned as well as of the Congress." Is it said 
that this provision contemplates a case where only a part of the 
State's territorial jurisdiction may be occupied by the newly 
formed State ? Very probably the framers of the Constitution 
had such a case in mind, but so much the worse for the case 
in hand. Does not an article which forbids any part of a 
State's territory being so appropriated, for a stronger reason for- 
bid the occupation of the whole, and the absolute destruction 
of the legitimate State ? Can you take the whole without its 
parts ? Gentleman, it will not be respectful to your good 
sound common sense to spend a moment's time on this point. 

Again, by an express provision of the same Constitution, al- 
most immediately following the above, and to be considered in 
connexion with it, — the United States are bound to guaranty 
to every State in this Union, a government, and a republican 
form of government. Will this guaranty be fulfilled by suffer- 
ing this Government be to annihilated, and annihilated by 
a power which, by the very terms of the article first above 
mentioned, can no more be recognised as corporate Rhode-Island 
than Texas or Algiers, 

Tell us not of the admission of Michigan, Michigan was a 
territory. No pre-existent State was subverted, — we know of 
nothing in the Constitution that forbids Congress bestowing 
upon any territory that State form of government which is 



12 

gaaranteed to every State, and which, if reduced by this move- 
ment to the condition of a territory, it may be onr humihatinglot 
in some way to receive at their hands. 

But, gentlemen, Congress is not the only tribunal before 
which we shall have to appear. It is the peculiar province of 
the Supreme Court of the United States, to decide in the end 
all constitutional questions, and questions touching State rights. 
I will, therefore, state to you what must, necessarily, accord- 
ing to the common course of judicial proceedings, be the pro- 
cess by which this question will be determined in the courts 
of the Union. When the existence of a State has been 
constitutionally recognised, the courts of the United States 
may well recognise the government de facto as the gov- 
ernment de jure, in other words the government in 
fact as the government in law. They may well enough pre- 
sume, that those who exercise the powers of the State are the 
legal officers of the State, and leave the question of the legality 
of the election to be settled by the State functionaries appoint- 
ed to that special duty ; but before there can be any such pre- 
sumption, therv^ must be a State — a State known to the Con- 
stitution and laws of the Union. There is no such thing as 
presuming the existence of such a State. A de facto State is 
as truly as a de facto corporation, an absurdity in terms. A 
State must have its fundamental laws or constitution known 
to the Constitution of the Union of which it is a member, and 
in accordance with it, and to talk of a de facto law is to talk 
profound nonsense. 

To prove then the existence of the new State, or even to 
prove the existence of any of its officers, you must present to 
the supreme court of the Union this instrument which has been 
proclaimed as the supreme law of this State, and you must shew 
that it had a legal origin. 

The question will not be who voted for it, or how many, 
but what right any body had to vote for it at all as the supreme 
law of Rhode Island. 

In the records of the true constitutional State of Rhode Is- 
land, you can nowhere find any law, any authority counte- 
nancing such a proceeding. 

This the friends of the supposed Constitution must them- 
selves confess. Indeed they must boldly avow, that it was not 
only voted for without any such authority, but against the 
whole body of the legislation of the State, whose fundamental 
laws have all been recognised directly or impliedly by the con- 
stituted authorities of the Union, and by the very court that 
will be called upon to decide this question. And can we think 



13 

that this court will lose its firmness, and tread back its steps, 
on account of the delusion of some ten or fifteen thonsand per- 
sons in this State, and establish a constitutional principle of 
disorganization, which must eventually become predominant 
in every State, and reduce all to rnin ? It is folly to antici- 
pate such a decision, and wickedness to hope for it. 

This pretended Constitution then does not spring from con- 
stitutional Rhode Island — from that Rhode Island known to 
the Constitution of the United States as the State of Rhode Is- 
land and Providence Plantations; it is without legal authority, 
and of no more value in the courts of the Union than so much 
blank parchment. You are then without a Constitution — you 
are without fundamental laws — you have no officers that can 
be recognised as officers de facto, for there are no legal and 
constitutional duties for them to discharge. You have no leg- 
islature — no State legislation — in one word you have no State, 
and are reduced to the condition of a mere territory of the Un- . 
ion, without the benefit of territorial laws. 

Now, gentlemen, what are the consequences? it is well worth 
while to enquire. — We stand upon the brink of an awful gulf. 
We are about to take the leap, and we may well feel some 
anxiety to look down into it, and obtain a glimpse of what sort 
of a Tartarus it is into which we are about to make the final 
plunge. 

Gentlemen, I will whisper a few qestions to you, all of which, 
I dare not, for the peace of this State, answer even in a Avhisper, 
There is too much combustible material in this wide-spread 
union — too many daring and reckless adventurers of all sorts. 
Gentlemen — it is the faith of the untutored savage, that cer- 
tain birds of the air, and beasts of the desert, are endowed with 
something like a prescience or foreknowledge of the coming 
banquet which human strife is to provide, and, that some days 
in anticipation of the event, they come from all quarters of the 
heavens, and from all the far depths of the forest, and congre- 
gating in the neighborhood of the appointed place, eagerly 
await the approaching carnage. I do not want to be heard or 
understood by such as these. Therefore, will I not answer all 
the questions that I may put, but simply shew you that there 
are such questions. 

When corporate Rhode-Island ceases to exist, what becomes 
of her delegation in Congress? 

What becomes of her bill in chancery which she filed, 
claiming through her charter, and through that only, a portion 
of territory within the jurisdictional lines of Massachusetts ? I 
mention this not for its importance, but for its illustration, and 



14 

because in the event supposed the question must necessarily 
arise. What becomes of the pubhc property of all sorts ? Your 
court houses ? Your jails ? Your public Records ? Public 
Treasury, bonds and securities of all sorts, which belong to the 
present corporate Rhode-Island and to her only, and can pass 
from her only by her Legislative consent? What becomes of the 
actions now pending on the dockets of every court in this 
State — bills of indictment for crimes committed or that may be 
committed ? What becomes of your State Prison, and your 
convicts, from the wilful murderer to the petty thief? What 
becomes of your corporations of all sorts ? Of your corporate 
towns and their records ? Nay, are there not questions touch- 
ing life, liberty and individual property ? I dare go no farther; 
perhaps I have already gone too far. But whatever answer may 
be given to these questions, (and answered they must ultimate- 
ly be in the Supreme Court of the Union) the bare fact that 
these questions must be raised, tried and decided, is sufficient to 
send a thrill of horror through the heart of every man, woman, 
and child in this State. 

And all this for what ? For if revolutions may be justified, 
we may well put the question. It is said to be for an exten- 
sion of suffrage and an equalization of representation. How 
many of you have ever felt the \v'^ant of this to be so great as 
even to sign a petition to the General Assembly on the subject? 
If this be a grievance at all, is it not the merest trifle compared 
with the calamities through which we must pass, in order to 
redress it in the mode which this movement has proposed ? If 
it be a grievance, it has scarcely been felt, and a legal, and 
legitimate remedy is already before you from the State's con- 
vention. Is there any other? Did we ever petition this 
government for any favor which reasonable men might ask for, 
no matter what party was in power, that was not cheerfully 
granted ? Are we overtaxed by this State ? Is there any op- 
pression which can be named to justify a revolution? Have 
not we and our fathers all lived in peace and happiness under 
the laws of this State, from its first establishment to the present 
day ? Did not our fathers establish themselves here in a howl- 
ing wilderness and under the protection of that distinctive prin- 
ciple of their government, religious liberty, enjoy peace and 
quiet and happiness, whilst the sister colonies were shedding 
blood, and persecuting their fellow men for conscience sd^ke ? 
Did they not, under this State and for this State, utter the 
declaration of independence, and led on by her Greenes and 
Olneys, go forth in array of battle and shed their blood on a 
hundred fields ? Did they not gloriously and triumphantly se- 



15 

cure to us the rights which we ever since have and now enjoy 
under the protecting laws of this State ? But they have done 
their work — they have passed through the toils and sufferings 
of their day, and laid them down in the quiet grave where the 
wicked cease from troubling, and the weary are at rest. They 
have left the fruits of their labors as an mheritance to us. May 
their sainted spirits join with us in a prayer to the Almighty 
Father of all spirits, to save us from this fatal delusion ! 

Gentlemen, the meaning of the word revolution in this case 
is very different from its meaning, when it designates the con- 
flict between the colonies and the mother country. That was 
a conflict between corporate bodies on this side of the Atlantic 
against corporate Britain on the other. But revolution in this 
case means a conflict among the very elements of society. It 
proposes to realize, here in Rhode-Island, the horrors of the 
French Revolution. It proposes to arm neighbor against 
neighbor, friend against friend, brother against brother, father 
against son, and son against father, — and ail this for what ? 
can any one tell us ? 

We may flatter ourselves that we are a people too enlighten- 
ed and too good to pass into the excesses which have marked 
revolutions in every age ; but, gentlemen, in all ages of the 
world, and in all countries,excited passion, in its extremes, is the 
same — the individual man, however enlightened and good he 
may be, as an individual, is merged in the mass to which he 
belongs, he loses his freedom, he blends with it, whilst the 
mass itself becomes a mere brute force, which, under the in- 
fluence of the idea or passion which actuates it, goes on and 
on— heedless of the ruin which it makes, heedless of its own 
destiny, to its final dissolution or utter annihilation. Would to 
God, that men would learn something from history ! But it 
has been well observed, that we ever place the lantern in the 
stern, and not at the prow. It sheds its light only on the tu- 
multuous billows of the past. We there see the wrecks of na- 
tions that have committed themselves to anarchy, tossing and 
heaving on the stormy surge. Yet on we go, exulting in our 
superiority over our predecessors, heedless of the rocks be- 
neath the bow, until the billow on which we are borne sinks 
beneath us and dashes us into fragments. 

It may be thought that I am indulging in feelings not usual 
to the Bench; but, gentlemen, there are occasions when human- 
ity may be excused for raising above the petty etiquette of 
official dignity, when the formalities of the judge may be lost 
in the realities of the man. And if ever such an occasion pre- 



16 

sented itself in any State, it now presents itself in this. It would 
be our duty, as good citizens, but it is imperiously our duty, as 
sworn conservators of the peace, to tell you what is law, and 
what is not law This duty we are not at liberty to forego. 

I therefore say to you, and all others duly qualified, that it 
will be lawful for you to vote on the Constitution now sub- 
mitted to you by the State's Convention, and that if it be 
adopted, any person in this State, commits a breach of allegi- 
ance who wilfully fails to support it. If it be not adopted, it 
will be our duty still to adhere to that compact of our ances- 
tors called the Charter, as that sheet anchor at which our be- 
loved State has triumphantly ridden out many a storm, and 
can as triumphantly ride out this. And as to that instrument, 
called " the Peoples Constitution," however perfect it may be 
in itself, and however strong may be the expression of public 
opinion in its favor — yet, standing as it does, alone and with- 
out any legal authority to support it, it is not the supreme law of 
this State; and those who may attempt to carry it into effect by 
force of arms, will, in the opinion of this court, commit treason 
— treason against the State — treason perhaps against the United 
States — for it will be an attempt by the overt act of levying 
war, to subvert a State, which is an integral part of the Union; 
and to levy war against one State, to that end, we are appre- 
hensive will amount to the levying of war against all. 

Gentlemen, do not misapprehend us, — we make not this 
declaration by way of denunciation or threat, but simply be- 
cause it is our duty to declare the law. As a court of law, 
were it even in our power, we would not act on any man's 
fear, save on that fear of which every good citizen may be 
proud, — the fear of doing a wrong or illegal act. And we 
make this declaration with the hope that those gentlemen who 
have engaged in this movement — for many of whom a personal 
acquaintance enables us to cherish sincere respect and esteem 
— v/ill be induced to pause and to reflect, — to reflect deeply. — 
We admit their courage, but may they use it in a good cause, 
and without following the example, adopt the sentiment of 
Macbeth, when urged to commit treason and murder — 

" / dare do all that may become a man; 
Who dares do more, is none." 



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